Chapter 3:Criminal Justice

Secrecy Is a Barrier to Responsible Use of Police Technologies

Police departments across the country are adopting new surveillance technologies, including cameras that scan license plates, tablets that recognize faces, and devices that intercept signals from mobile phones. Unfortunately, these tools are often shrouded in secrecy. Police departments deploy new technologies without clear use policies to guide their use or audit logs to keep users accountable,[66] sign non-disclosure agreements (NDAs) with technology vendors,[67] decline public records (FOIA) requests,[68] and cooperate with federal officials to shield key information from disclosure.[69]

If adopted and deployed in an opaque fashion, new police tools open the door for discrimination and other abuses.

Transparency is vital. It allows for the incorporation of safeguards and policies that could pave the way for fair uses of these new technologies. If adopted and deployed in an opaque fashion, new police tools open the door for discrimination and other abuses.

Recent deployments of automatic license plate readers (ALPRs) illustrate this point. ALPRs are high-speed cameras that photograph all passing vehicles, feeding a database that may eventually describe many peoples’ comings and goings. Unfortunately, the devices have been used to target minority groups. For example, police officers in New York reportedly drove “unmarked vehicles equipped with license plate readers around local mosques in order to record each attendee.”[70] And according to one New York police officer, the use of license plate readers “is only limited by the officer’s imagination.”[71]

These reports are troubling, but it’s easy to imagine ALPRs responsibly deployed. For example, an ALPR system could discard scans that don’t raise red flags (fewer than 1% do). Police departments could easily develop better policies by asking where ALPRs are deployed, when and how data can be used, and how long it is retained. Unfortunately, today, ALPR data is “often retained for years or even indefinitely, with few or no restrictions . . . .”[72]

It can be exceedingly difficult for advocates to learn about police technologies. Police departments across the country sign NDAs from technology vendors, which function as gag orders. For example, an Arizona journalist obtained a copy of the agreement between a vendor called Harris Corporation (which produces “Stingrays,” a high-tech device that mimics a cell phone tower in order to snoop on nearby mobile phones) and the Tucson Police Department.[73] Among other things, it barred the police department from discussing the technology with any government entity and required the department to notify Harris whenever it received a public record request concerning one of the company’s “protected products.”[74]These NDAs are sometimes cited when declining public record requests, even if they seem to conflict with public record laws.[75]

In another case, in the summer of 2014, U.S. Marshals drove to a local police station in Sarasota, Florida, seizing some of the station’s Stingray-related records and moving them to an undisclosed location.[76] The ACLU had evidence that police were using the devices without a probable cause warrant, relying instead on a less protective state statute typically used for more limited requests. “We’ve seen our fair share of federal government attempts to keep records about [cell phone surveillance technology] secret, but we’ve never seen an actual physical raid on state records in order to keep them from public view,” said Nathan Wessler, an attorney for the ACLU.

Advocates aren’t the only ones left in the dark: police technologies have also been hidden from the courts. For example, shortly after the seizure of records by U.S. Marshals, the ACLU released email messages showing that Florida police repeatedly and deliberately hid their use of cell phone surveillance technology from state courts.[77] “Concealing the use of stingrays deprives defendants of their right to challenge unconstitutional surveillance and keeps the public in the dark about invasive monitoring by local police,” noted Maria Kayanan, Associate Legal Director of the ACLU of Florida.

These problems are exacerbated by federal grant programs—including those that give police access to decommissioned military hardware, and the “equitable sharing” regime for federally seized drug funds. Such programs allow police to sidestep the natural oversight that happens when new police investments rely on local funds. This culture of secrecy threatens civil rights and short-circuits a needed debate about how to use these tools responsibly.

There are many opportunities for the civil rights community to help create appropriate boundaries for use of new police technologies. Some positive steps have already been taken, such as the 2007 DHS Best Practices for Government Use of CCTV.[78] Deployment of some police technologies could be contingent on their use being bounded by traditional constitutional safeguards, such as judicial approval and warrants, whether implemented through federal or state law or other means. However, before appropriate debates about the uses of the newest technologies can happen, law enforcement must show a willingness to enter into a dialogue and move their technologies out of the shadows.